Economic Insights in Adjudication of Hard Cases : Unclear Rule

This paper seeks to find out whether and how use of incentives-related insights from economics may be helpful to a judge interpreting a semantically unclear legal rule. It is argued that, by their nature, economic insights are useful in purposive interpretation if the rationale underlying the legal rule is of future-oriented nature. There are two different types of insights from economics available to judges interpreting a legal rule purposively. First, if the underlying rationale of the rule is of economic nature, insights from normative economics might help to conceptualize the purpose in the phase of identification of the purpose. Second, if the underlying rationale of the rule is of future-oriented nature (including the economic rationales), insights from positive economics may help to predict social consequences of alternative semantic meanings of the rule, which are consequently evaluated against the rationale. Insights from positive economics, therefore, may prove helpful in interpretation of legal rules with wide variety of (future-oriented) purposes. Because all courts within a system are required to interpret a legal rule consistently (like cases should be adjudicated alike), social consequences of alternative semantic meanings may (need to) be taken into account by lower and higher courts alike where the purpose of the semantically unclear rule is of future-oriented nature